Los Angeles Unified School District (PERB 1657E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

UNITED TEACHERS OF LOS ANGELES,
Charging Party, Case No. LA-CE-4506-E

V. PERB Decision No. 1657

LOS ANGELES UNIFIED SCHOOL DISTRICT, July 8, 2004

Respondent.

Appearance: Geffner & Bush by Kathleen M. Erskine, Attorney, for United Teachers of
Los Angeles.

Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the United Teachers of Los Angeles (UTLA) of a Board agent’s
dismissal (attached) of its unfair practice charge. The charge alleged that the Los Angeles
Unified School District (District) violated the Educational Employment Relations Act (EERA)'
by discriminating against and interfering with the rights of a unit member because of his
protected conduct. UTLA alleged that this conduct constituted a violation of EERA section
3543 5(a) and (b).

After a review of the entire record, including the unfair practice charge, the Board
agent’s warning and dismissal letters, and UTLA’s appeal, the Board adopts the Board agent’s

warning and dismissal letters as its own decision and dismisses the charges.

'EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

BACKGROUND
The District instituted a Ten Schools Program several years before the facts of this case
arose. Under that program, teachers at Mann Middle School (Mann) were required to sign a
"Commitment Form" in which they agreed to additional conditions related to their
employment. These conditions include a dress code and four weeks of additional staff
development programs. None of the other District schools required this agreement. 	The
agreement was by a signed "Commitment Form."
Scott Miller (Miller) was a teacher at Mann. 	He was employed during the 2001-2002
school year as a temporary teacher. 	He signed the commitment form on April 19, 2002. He
attended a meeting held by UTLA in which he was advised of the union position related to the
commitment forms. 	At that meeting he was told that teachers who did not sign the form would
be eligible to work at other District schools. Following the meeting he asked the principal to
return his form.
In early August of 2002, Miller contacted the school inquiring when to report to work
and was advised he no longer was employed at that school. He was told he would need an
evaluation to be re-employed and that he should look for employment at other District schools.
On September 3, 2002, the UTLA representative was told by the principal of Mann that
Miller would have a job at the school if he signed the "Commitment Letter." The UTLA
representative was also told the next day, by a District personnel specialist, that the District
was not going to allow a temporary teacher to change schools.
Miller interviewed at other schools within the District in September and October
without procuring employment. One of the schools where he interviewed was Virgil Middle
School (Virgil). 	He received various reasons for not being hired at any of them.
2

UTLA alleges that in refusing employment at Virgil, and in a pattern of denying jobs to
Miller, the District has taken an illegal reprisal because of Miller's refusal to sign the
commitment form.
BOARD AGENT DISMISSAL
Protected Activity
The charge was dismissed for failure to state a prima facie case of discrimination. 	The
Board agent found Miller's revocation of his commitment form was not protected activity. He
found no case law or statute to support that position. Miller did, however, engage in protected
activity by enlisting the assistance of UTLA when seeking other jobs.
Motive
The Board agent did not believe UTLA had made its case to prove motive, particularly
how other schools denied Miller employment because of alleged protected activity.
Right to Employment
The charge states that the teachers who did not sign the form would be "eligibie for"
employment at other schools in the District. It does not indicate that temporary teachers would
have employment at other schools. Miller, as a temporary teacher, had no right to continued
employment with the District.
DISCUSSION
To demonstrate a violation ofEERA section 3543.S(a), the charging party must show
that: 	(I) the employee exercised rights under EERA; (2) the employer had knowledge of the
exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because of the exercise of those rights. 	(Novato Unified School District (1982)
3

PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264 (No. Sacramento)), it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one
or more of the following additional factors must also be present: (1) the employer's disparate
treatment of the employee (State of California (Department of Transportation) (1984) PERB
Decision No. 459-S); (2) the employer's departure from established procedures and standards
when dealing with the employee (Santa Clara Unified School District (1979) PERB Decision
No. l 04); (3) the employer's inconsistent or contradictory justifications for its actions (State of
California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the
employer's cursory investigation of the employee's misconduct; (5) the employer's failure to
offer the employee justification at the time it took action or the offering of exaggerated, vague,
or ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572); or (7) any other facts which
might demonstrate the employer's unlawful motive. 	(Novato; No. Sacramento.)
Evidence of adverse action is also required to support a claim of discrimination or
reprisal under the Novato standard. (Palo Verde Unified School District (1988) PERB
Decision No. 689.) In determining whether such evidence is established, the Board uses an
objective test and will not rely upon the subjective reactions of the employee. (Ibid.) In a later
decision, the Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
4

reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; fn. omitted.]
The theory
of
UTLA is that Miller's refusal to sign the form is protected because he
was following the advice
of
the union representative. We do not agree that this is protected
activity and emphasize there is no case law indicating that it is. Further, there is no evidence
that the District and UTLA had an agreement permitting employees to refuse to sign the form.
Based on the facts in the charge, the form appears to be a valid term and/or condition
of
employment. 	Miller's refusal to perform a valid condition
of
employment is likewise
unprotected.
The Beaumont2 case cited by the dissent here is inapposite. 	The situation
of
that case
had a potential issue involving protected activity, however, there is no such activity here.
The Board in Beaumont said, in dicta, that the failure to follow union advice was not
protected activity in that instance. 	That does not mean following union advice is always
protected activity regardless
of
the advice or the conduct.
The union in Beaumont had alleged the school district proposal for non-retroactive
wage increase, that was effective on ratification
of
the entire agreement, was unlawfully
regressive merely because
of
the lost monetary benefit. 	The district had sent offers
of
employment directly to the individual bargaining unit members and the union told each
member not to sign the contracts because they were improper offers bypassing the exclusive
representative.
Members were advised by the union to sign a union form indicating an intention to
return to work so they would comply with the education code notice requirements. 	Three
2Beaumont Unified School District (1984) PERB Decision No. 429 (Beaumont).
5

teachers did not return either form and they were not immediately rehired. 	They had not given
the district notice
of
intent to return to work. 	The teachers who returned the union form were
rehired and the three who returned no form were eventually rehired before the start
of
the next
school year. 	The union argued that those three employees engaged in protected activity by
following union advice and refusing to participate in direct dealing with the district. But those
who did send in the union form did not have any action against them.
The dissent here notes the Board in Beaumont said those individuals who did not follow
union advice, when they did not send in any form, did not participate in protected activity.
However, the parties in that case were negotiating a collective bargaining agreement covering
the dispute. Here, the form was not covered by the collective bargaining agreement or any
other agreement between the District and UTLA. 	Instead, the form was a valid term and/or
condition
of
employment. The dicta in Beaumont cited by the dissent simply does not apply
under these facts.
The Board therefore upholds the Board agent dismissal and adopts the warning and
dismissal letters as its own decision.
ORDER
The unfair practice charge in Case No. LA-CE-4506 is hereby DISMISSED WITHOUT
LEAVE TO AMEND.
Member Neima joined in this Decision.
Member Whitehead's dissent begins on page
7.
6

WHITEHEAD, Member, dissenting: I respectfully dissent. A recitation
of
the facts as
I see them follows:
Scott Miller (Miller), a teacher at Mann Middle School (Mann), was employed during
the 2001-2002 school year, was credentialed in social studies, math and possessed a science
supplemental credential, and received a positive evaluation at the end
of
the school year.
The Los Angeles Unified School District (District) instituted a Ten Schools Program
several years before and under that program, teachers at Mann were required to sign a
"commitment form" in which they pledge to, inter aha, conform
to
a dress code and participate
in an extra four weeks
of
staff development programs. Teachers at all other District schools
were not required to sign this form. 	Miller signed the form on April 19, 2002. During this
period, United Teachers
of
Los Angeles (UTLA) Representative Roger Scott (Scott) was
conducting weekly meetings at Mann to advise teachers
of
their rights with regard to the form
and
of
the District's representation that the teachers would be eligible to work at other District
schools
if
they chose not to sign the form. 	After one
of
these meetings, Miller asked the Mann
Principal, Barbara Rickett (Rickett), to return his form. 	Other unit employees also did not sign
the form.
On August
9,
2002, Miller contacted Mann to find out when he was to report to work
and learned that he no longer had a position at Mann. On August 14, 2002, Matthew Greco, a
personnel specialist at Mann told Miller that he needed an evaluation to be reemployed. 	The
next day, Miller spoke with the Mann office manager, who advised him to look for
employment at other District schools.
Miller attempted unsuccessfully to obtain employment at other middle schools. On
August 29, 2002, Miller interviewed for a position at Pacoima Middle School (Pacoima) and
was offered a job. Later, Miller was denied the job because of an alleged substandard rating.
7

Miller asked Rickett about this alleged substandard rating. 	She replied that she was not aware
of
such a rating and that Miller had indeed received a good year-end evaluation. Rickett sent a
non-confidential reference to personnel on September 3, 2002 and to Miller. Although the
copy provided with the charge is difficult to read because
of
poor copy quality, it appears to be
a good reference. 	On September
3,
2002, Rickett told UTLA representative Scott that
if
Miller
had signed the commitment form, he would still be working at Mann. The next day, Scott
asked Phyllis Klein (Klein), a District personnel specialist, why Miller was denied employment
at Pacoima, and Klein stated that the District would not allow a temporary teacher to change
schools and that Miller should have signed the commitment form. 	On September 10, 2002,
Scott again asked Klein why he was denied employment at Pacoima and she responded that it
was because the school was "overteachered."
On September 12, 2002, Miller interviewed and was offered a job at Byrd Middle
School (Byrd). The next morning the Byrd principal called Miller and rescinded the offer with
a vague explanation involving a "situation with a choral teacher." Miller however teaches
math, social studies and science. On September 17, 2002, Miller interviewed at Burbank
Middle School but on September 26, 2002 was denied a job there allegedly because the
principal had to give the open positions to two "must place" teachers. On October 16, 2002,
Jerry Durham (Durham), Virgil Middle School (Virgil) principal, called Miller to inquire
whether he was available to teach. Miller advised Durham to contact Human Resources
regarding his eligibility. Miller later learned that a District personnel specialist had informed
Durham that he was not eligible. After discussions with UTLA representatives, Durham
informed Miller on October 21, 2002 that he was eligible for reemployment and she would be
interviewing for the position. Before his interview, a secretary called Miller and informed him
that another teacher was hired for the position.
8

UTLA explains that Miller's activity is protected because he revoked his signature on
the commitment form as a result
of
advice received from UTLA representatives at one
of
several meetings held for the purpose
of
representation on terms and conditions
of
employment. At these meetings, UTLA representatives and unit members explained the form
as representing an additional term and condition
of
employment and employees agreed that
they should not sign the form. 	UTLA also informed teachers that the District would assist
teachers who did not sign the form in relocating to other schools. The District was aware
of
these meetings because they took place at Mann. By attending these meetings, Miller and
other teachers were participating in union activities for purposes
of
representation.
	By
acting
in response to UTLA's advice, those teachers who refused to sign or revoked their signature
were engaging in protected activity. UTLA insists that the parties agreed to allow employees
to not sign the form. 	Miller's taking advantage
of
that agreement is also protected conduct.
(Compare North Sacramento School District (1982) PERB Decision No. 264 (No. Sacramento)
and City
of
Milpitas (2004) PERB Decision No. 1641-M.) Further, Miller was relying upon
the District's representation that it would not retaliate against any teacher who declined to sign
the form. 	However, the District did retaliate by terminating his employment at Mann and
denying him opportunities for employment at other District schools.
In light
of
these facts, UTLA asserts that the District engaged in a pattern
of
denying
Miller employment or rescinding job offers on the basis
of
his failure to sign the commitment
form and thus unlawfully imposed reprisals on him for protected activity in violation
of
Educational Employment Relations Act (EERA) section 3543.S(a) and (b).
9

BOARD AGENT DISMISSAL
The Board agent found that UTLA failed to state a prima facie case
of
discrimination.
Reviewing the facts under the Novato test, 1 the Board agent found that Miller's revocation
of
the commitment form was not protected activity and that he was aware
of
no case law
or
statutory provision to support such a right. He explained that UTLA does not show
how Mann
was unable to lawfully separate teachers who did not sign the form. 	The Board agent also
found that UTLA has not shown sufficient indicia
of
motive, i.e., how other schools denied
Miller employment because
of
his alleged protected activity at Mann, particularly because
Miller, as a temporary teacher, has no right to continued employment with the District. The
dismissal letter refers to a faxed letter received from UTLA
by
the Board on September 30,
2002.2
DISCUSSION
To demonstrate a violation
of
EERA section 3543.S(a), the charging party must show
that: 	(1) the employee exercised rights under EERA; (2) the employer had knowledge
of
the
exercise
of
those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because
of
the exercise
of
those rights. (Novato; Carlsbad Unified School
District (1979) PERB Decision No. 89.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (No. Sacramento), it does not, without
more, demonstrate the necessary connection or "nexus" between the adverse action and the
1Novato Unified School District (1982) PERB Decision No. 210 (Novato).
2There is no evidence that this September 30, 2002 letter was served on either the Board
or the District. The letter is also not in the record, and therefore, cannot be reviewed.

protected conduct. (Moreland Elementary School District (1982) PERB Decision No. 227.)
Facts establishing one or more
of
the following additional factors must also be present: (1) the
employer's disparate treatment
of
the employee (State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S); (2) the employer's departure from
established procedures and standards when dealing with the employee (Santa Clara Unified
School District (1979) PERB Decision No. 104.); (3) the employer's inconsistent or
contradictory justifications for its actions (State
of
California (Department
of
Parks and
Recreation) (1983) PERB Decision No. 328-S); (4) the employer's cursory investigation
of
the
employee's misconduct; (5) the employer's failure
to
offer the employee justification at the
time it took action or the offering
of
exaggerated, vague, or ambiguous reasons; (6) employer
animosity towards union activists (Cupertino Union Elementary School District) (1986) PERB
Decision No. 572); or (7) any other facts which might demonstrate the employer's unlawful
motive. (Novato; No. Sacramento.)
Evidence
of
adverse action is also required to support a claim
of
discrimination or
reprisal under the Novato standard. (Palo Verde Unified School District (1988) PERB
Decision No. 689.) In determining whether such evidence is established, the Board uses an
objective test and will not rely upon the subjective reactions
of
the employee. (Ibid.) In a later
decision, the Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; fn. omitted.]
In its appeal, UTLA alleges that Miller's conduct, i.e., revoking his signature on the
commitment form in direct response to advice he received from UTLA representatives at
meetings held at Mann, was protected. I agree with UTLA.
11

This case may be contrasted with the Board's decision in Beaumont Unified School
District (1984) PERB Decision No. 429 (Beaumont). In Beaumont, the Board held that
employees' conduct involving a failure to follow the union's advice is not protected. The
district had mailed unit members an offer
of
employment for the next school year and a request
to sign and return the form to verify acceptance
of
the employment offer in order to comply
with provisions
of
the Education Code. The offers identified a salary which allegedly
incorporated a percentage increase. A few days later, the union sent each member a notice
asking them not to sign the district's form because the salary offer improperly bypassed the
union. Instead, in the union notice, in order to comply with Education Code requirements, the
union asked employees to sign and return
to
the district the union's alternative form showing
intent to work at the school the following year. Three employees chose not to sign either form
and were deemed by the district to have declined employment for the following year. 	Under
these circumstances, the Board agreed with the district.
·
Conversely, in the instant case, UTLA representatives were conducting weekly
meetings at Mann advising teachers, including Miller, about their rights with regard to the
commitment form. 	UTLA advised teachers at these meetings that the District had represented
that it would assist teachers, who had chosen not to sign the form, in relocating to other
District schools. Mann was the only school in the District in which teachers were required to
sign the commitment form; however, UTLA states that UTLA and the District agreed that the
Mann teachers could refuse to sign the form. Miller had previously signed the form but had
asked Rickett to return the form in order to revoke his signature. 	In so doing, Miller was
acting in direct response to advice he received from UTLA and consequently Miller's
revocation of his signature on the commitment form must be considered protected conduct.
12

It
was UTLA's understanding
of
the District's representation that teachers had a choice
to sign the form or the District would assist the teacher in relocating to other District schools. 3
UTLA thus alleges that signing the form was a voluntary act on the part
of
Mann teachers.4
Under Board precedent, refusal to perform a purely voluntary duty is protected conduct.
(Modesto City Schools (1983) PERR Decision No. 291,
p.
15.)
It
should be noted that at least some items included on the commitment form, such as
four extra weeks
of
paid staff development, are matters within the scope
of
representation
under EERA. (See Contra Costa Community College District (1990) PERB Decision No. 804
(Contra Costa), pp. 7-8, citing Poway Unified School District (1988) PERB Decision No. 680
(Poway).)5
It is clear that the District's conduct comprised an adverse action against Miller.
Although Miller had received a positive performance evaluation while at Mann, he lost his
3Compare No. Sacramento. In that case, an employee asserted his right to file a
grievance pursuant to a negotiated grievance procedure. The Board stated that:
An employee's attempt to assert rights established by the terms
of
a negotiated agreement clearly constitutes 'participation' in the
activities
...
protected by section 3543
of
the Act. Were this not
the case, an employer could freely retaliate against employees
because
of
their assertion
of
contractual rights, thereby
effectively undermining the collective negotiation process.
(At p. 6.)
Although it is not alleged that the agreement between UTLA and the District is
part
of
the parties' collective bargaining agreement, the principle still holds.
The claim
of
such an arrangement should be allowed to proceed to hearing.
4There is no evidence that the District's representation to assist teachers refusing to sign
the commitment form in relocating to other District schools distinguished between temporary
and permanent teachers.
5In Contra Costa, the Board indicated that the negotiability
of staff development must
be determined on a case-by-case basis by evaluating the relationship to enumerated terms and
conditions of employment. In this case, unlike Poway, the commitment form is alleged to
make four additional weeks of staff development mandatory and therefore affects hours of
employment, an enumerated item.)
13

employment with the District after rescinding his signed commitment form. 	This is evidenced
by offers and later denials
of
job opportunities at other District schools over a period
of
three
months. The denial
of
employment is a form
of
adverse action. (See, e.g., San Diego
Community College District (1983) PERB Decision No. 368.)
In its appeal, UTLA points
to
a pattern
of
conduct by the District in denying Miller
employment that shows unlawful motive. I agree. UTLA identifies conflicting, shifting and
vague justifications from the various District officials both to Miller and to Scott, the UTLA
representative. These include comments maintaining that
if
Miller had signed the commitment
form, he would still be working at Mann, and that as a temporary teacher, he is not entitled to
employment elsewhere. Within days, the explanations for denying Miller employment at other
schools changed to the school being "overteachered," a vague situation with a choral teacher,
having to hire "must place teachers," and his lack
of
"eligibility" although credentialed in three
subject matters. Moreover, that Miller received a positive year-end evaluation before signing
the form, and was then told by staff at Pacoima that his rating was substandard and by staff at
Virgil that he was ineligible for employment further evidences inconsistent explanations and
thus unlawful motive. 	(See Los Angeles Unified School District (2001) PERB Decision
No. 1469, admin. law judge's proposed dee. at p. 76; Livingston Union School District (1992)
PERB Decision No. 965, admin. law judge's proposed dee. at pp. 30-33 (Livingston).)
The Board agent raises the issue that Miller, as a temporary teacher, was not entitled to
employment at other District schools. However, Miller's status does not shield the District
from its unlawful conduct. The Board has previously held that the status
of
a probationary
teacher under Education Code section 44929 .21 (b) does not insulate an employer from Board
scrutiny of its unlawful conduct. (McFarland Unified School Dist. v. Public Employment
Relations Bd. (1991) 228 Cal.App.3d 166, 169 [11 Cal.Rptr.2d 405]; see also, Livingston, at p.
14

3 and admin. law judge's proposed dee., at pp. 34-37.) The same principle should apply to
temporary teachers.
In light
of
the above, I disagree with the majority and conclude that UTLA has provided
sufficient evidence
of
retaliation to state a prima facie case.
Finally, I agree with the majority that the facts presented in the charge do not
demonstrate a prima facie case
of
unilateral change. However, UTLA did not raise this
allegation in the charge. Therefore, I believe the majority's discussion
of
this issue is
unnecessary.
15

.

STATE OF CALIFORNIA 	=1: -
PUBLIC EMPLOYMENT -1<E=L=A=T=I=O=N=S=B=O=A=RD====\
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916)327-6377
September 30, 2003
Kathieen M. Erskine, Attorney
Jesus E. Quinonez, Attorney
Geffner & Bush
3500 West Olive Avenue, Suite 1100
Burbank, CA 915054628
Re: 	United Teachers of Los Angeles v. Los Angeles Unified School District
Unfair Practice Charge No. LA-CE-4506-E
DISMISSAL LETTER
Dear Ms. Erskine and Mr. Quinonez:
GRAY DA VIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 16, 2003. The United Teachers of Los Angeles alleges that
the Los Angeles Unified School District violated the Educational Employment Relations Act
(EERA) 1 by illegally discriminating against teacher Scott Miller.
I indicated to you in my attached letter dated September 24, 2003, that the above-referenced
charge did not state a prima facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to October 1, 2003, the charge would be
dismissed.
I have not received either an amended charge or a request for withdrawal. However, I
received, by facsimile, a letter from you on September 30, 2003. In that letter, you request that
I reconsider the assessment of your charge made in my letter of September 24.
You contend that Mr. Miller was the subject of "a pattern of discriminatory treatment that
began when Mr. Miller revoked his signed 'Commitment Form'." However, as described in
my letter of September 24, I am aware ofno case law or statutory provision which makes the
refusal to sign such a form (or the decision to revoke it) protected activity under EERA.
You also state that "Mr. Miller interviewed for and was denied the job" at Virgil Middle
School. I note that your charge states (paragraph 16), "Prior to Mr. Miller's interview, the
school secretary at Virgil Middle School informed Mr. Miller that the school had hired another
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-4506-E
September 30, 2003
Page 2
teacher for the position." In any event, in my letter
of
September 24, I discussed the fact that
as a temporary teacher, Mr. Miller had no continuing employment rights with the District. I
concluded that your charge contained insufficient evidence
of
improper motive for denying
him employment. I then stated, "For example, Charging Party has not demonstrated that filling
the job at Virgil was not proper under past practice or obligations to those teachers that do
have continuing employment rights." Your letter does not supply additional facts which
establish that the failure to hire Mr. Miller at Virgil Middle School was improperly motivated.
I am dismissing the charge based on the facts and reasons contained herein and in my
September 24 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If
you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-4506-E
September 30, 2003
Page 3
Service
(
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By-c~~~J
Bernard McMonigle
Regional Attorney
Attachment
cc: Kathleen M. Erskine, Attorney
Jesus E. Quinonez, Attorney

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento,
CA
95814-4174
Telephone: (9 I 6) 327-83 86
Fax: (916) 327-6377
September 24, 2003
Kathleen M. Erskine, Attorney
Jesus
E.
Quinonez, Attorney
Geffner & Bush
3500 West Olive Avenue, Suite 1100
Burbank, CA 915054628
Re: 	United Teachers
of
Los Angeles v. Los Angeles Unified School District
Unfair Practice Charge No. LA-CE-4506-E
WARNING LETTER
Dear Ms. Erskine and Mr. Quinonez:
GRAY
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 16, 2003. The United Teachers
of
Los Angeles alleges that
the Los Angeles Unified School District violated the Educational Employment Relations Act
(EERA)1 by illegally discriminating against teacher Scott Miller.
Scott Miller was a teacher at Mann Middle School during the 2001-2002 school year. Under
the Ten Schools program, teachers at Mann were asked to sign a "Commitment Letter" in
which they pledged to conform to a code
of
conduct which includes a professional dress code
and certain staff development programs. Mr. Miller signed the form on April 19, 2002.
Soon thereafter, UTLA met with teachers at Mann regarding their rights not to sign the form
and the District's representation that they would be eligible to work at other schools
if
they did
not sign the form. 	Mr. Miller requested that the Mann principal, Barbara Rickett, return his
form. 	She did so. On August 9, Mr. Miller was informed that he no longer had a position at
Mann.
On September 3, UTLA representative Roger Scott was told by Principal Rickett that Mr.
Miller would have a job at Mann
ifhe
signed the "Commitment Letter". The next day Mr.
Scott was told by a District Personnel Specialist that the District was not going to allow a
temporary teacher to change schools.
In September and October 2002, Mr. Miller applied for teaching positions at several other
schools. He was not hired and was given a variety of reasons. Pacoima Middle School stated
it was "overteachered", Byrd had a "situation with a choral teacher", Burbank had "must
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
Governor

LA-CE-4506-E
September 24, 2003
Page 2
(
place" teachers, Virgil advised that it had been told by a District personnel specialist that Mr.
Miller was not eligible to be reemployed. Later the Virgil principal informed Mr. Miller that
he was eligible and there would be job interviews. However, prior to an interview, Mr. Miller
was informed that the job he hoped for had been filled.
UTLA alleges that in refusing employment at Virgil Middle School and in a pattern
of
denying
jobs to Mr. Miller, the District has taken an illegal reprisal because
of
Mr. Miller's refusal to
sign a "Commitment Form".
To demonstrate a violation
of
EERA section 3543.5(a), the charging party must show that:
(1) the employee exercised rights under EERA; (2) the employer had knowledge
of
the
exercise
of
those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because
of
the exercise
of
those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more
of
the following
additional factors must also be present: (1) the employer's disparate treatment
of
the employee
(State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State
of
California
(Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation
of
the employee's misconduct; (5) the employer's failure to offer the
employee justification at the time it took action or the offering
of
exaggerated, vague, or
ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
Evidence of adverse action is also required to support a claim of discrimination or reprisal
under the Novato standard. (Palo Verde Unified School District (1988) PERB Decision No.
689.) In determining whether such evidence is established, the Board uses an objective test
and will not rely upon the subjective reactions of the employee. (Ibid.) In a later decision, the
Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's

LA-CE-4506-E
September 24, 2003
Page 3
(
employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
The facts provided by Charging Party do not establish a prima facie case of discrimination.
Charging Party contends that Mr. Miller was discriminated against because of his failure to
sign the "Commitment Form". However, I aware of no case law or statutory provision which
protects Mr. Miller's right to refuse to sign the form. 	Charging Party does not appear to object
to the fact that Mr. Miller was separated from his original school (Mann) because he would not
sign the form. 	Charging Party provides no facts or argument that Mann school could not
separate teachers who did not make the required commitment to the program.
Rather, Charging Party contends that the other middle schools discriminated against Mr. Miller
because of his refusal to sign the form at Mann. As stated, I am aware of no case law or
statutory authority which make such refusal protected activity. However, Mr. Miller did
engage in protected activity by enlisting the assistance of UTLA when seeking other jobs.
Charging Party has not demonstrated that the schools where Mr. Miller made application after
leaving Mann denied him employment because of his protected activity. As a temporary
teacher at Mann, Mr. Miller had no continuing employment rights with the District. Charging
Party has supplied insufficient indicia of motive to establish that the other schools were
improperly motivated when denying him employment •
2
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. ff I do not receive an
amended charge or withdrawal from you before October 1, 2003, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
TI J-. 	M.~ k~)
Bernard McMonigle
Regional Attorney
BMC
For example, Charging Party has not demonstrated that filling the job at Virgil was
not proper under past practice or obligations to those teachers that do have continuing
employment rights.